Thread by @BurnhamDC

BREAKING: @AGPamBondi and SG John Sauer have filed an emergency application in the Supreme Court regarding their huge win in the USAID impoundment case, which we discussed previously.  This is a big deal, as I'll explain. 1/

First a point of privilege.  Having lived this case in the early days of @DOGE---with then-Acting SG Sarah Harris and many others---I really appreciate how the SG's Office frames the issue. 2/

Second, you might be wondering why @TheJusticeDept is seeking emergency relief in a case it *won*. Even though the DC Circuit deemed the district court's injunction patently unlawful, that injunction dissolves only when the DC Circuit issues its formal mandate. 3/

So where is the mandate?  Who knows!  It could be caught in en banc proceedings, the DC Circuit could be following its normal (slow) process, or something else.  But for the Government, this doesn't work.  It has a September 30 deadline to make decisions.  4/

DOJ's only recourse is accordingly the Supreme Court.  5/

Turning to the merits, for most of our history the political branches waged interbranch conflicts using the substantial weapons the framers gave them.  The notion that judges would referee disputes between Congress and the President would have shocked the founding generation.  6/

But everything changed at one of our all-time nadirs of presidential power--the post-Nixon era--when Congress, among other things, enacted the Impoundment Control Act.  That Act imposes a complex process for rescinding funds, as DOJ explains. 7/

But there is one thing that Act does *not* do--authorize NGOs, private charities, aggrieved states, or other private plaintiffs to sue about impoundment.  And without a cause of action to sue, you cannot sue. 8/

Yet here, "a single district court supplanted that process."  One district judge has commandeered the entire USAID appropriation and enjoined the Executive Branch to spend every penny--all without Congress authorizing the underlying suit in the first place.  9/

This litigation is important. But it also highlights the importance of procedure.  DOJ *won* its appeal, but the DC Circuit's refusal to issue its "mandate"---an obscure term if ever there was one---now threatens to impose a constructive loss, costing us all billions of $$. /10

So once again, the Supreme Court is called to the field.  This is a vitally important issue.  Let us hope the justices act swiftly. /end

PS - I will post a link to the stay application when it appears on the Supreme Court website. Had to pull this off the DC Circuit docket via PACER and can't figure out how to post a full PDF to X.

Here's the link: documentcloud.org/documents/2607…